First Amendment Victory: Federal Court Strikes Down Florida’s “Electioneering Communications” Law

Institute for Justice · May 26, 2009

Arlington, Va.—In a major victory for free speech, U.S. District Judge Stephan Mickle today issued an opinion striking down Florida’s “electioneering communications” law—the broadest regulation of political speech in the nation.  The ruling frees community groups and educational non-profits across Florida and the nation to speak about candidates and issues on the Florida ballot without registering with the government and navigating bureaucratic red tape.

“This is a tremendous victory for the First Amendment right to speak about politics without the government getting in the way,” said Institute for Justice Senior Attorney Bert Gall.  “Florida’s law put everyday political speech under the thumb of campaign finance bureaucrats.  But with today’s ruling, all Floridians—not just political insiders—can now discuss important political issues without fear of being punished or forced to submit to onerous regulations.”

Just before last November’s election, Judge Mickle issued a preliminary injunction preventing Florida from enforcing the law, noting that “no court has ever upheld such a sweeping regulation of political speech.”  Today’s decision permanently halts the law’s enforcement.

In today’s ruling Judge Mickle wrote, “While it is true that the legislature has the power to regulate elections, it does not have the power to regulate purely political discussions about elections.”

Under Florida’s “electioneering communications” law, any group of people that simply mentioned a candidate or a ballot issue in a public newsletter or on a website had to register with the government and report all of its spending and donors, even those who never intended their gift to go towards political speech.  Groups that failed to comply faced fines and possible jail time for their speech.  Individuals were also subject to burdensome reporting requirements if they spent just $100 of their own money to speak.

Florida’s law was passed after the U.S. Supreme Court in the 2003 McConnell ruling upheld the federal “electioneering communications” ban in the Bipartisan Campaign Reform Act, or McCain-Feingold.  But Florida regulated far more speech in more forums by more speakers than the federal law, which is again before the High Court this term in the Citizens Unitedcase.

“Florida’s political speech ban was a classic example of a bad idea at the federal level morphing into an even worse idea in the states—and of how speech regulation leads to more speech regulation,” said Gall.  “Hopefully, this ruling will reverse that trend as more courts take seriously the threat to First Amendment rights posed by campaign finance regulation.”

Last October, the Institute for Justice filed a First Amendment challenge to Florida’s law on behalf of the Broward Coalition of Condominiums, Homeowners Associations and Community Organizations, the University of Florida College Libertarians and the National Taxpayers Union, as well as the leaders of each organization.

Today’s ruling frees IJ’s clients and others like them to speak freely about political topics without having to first register with the government and submit to the same kinds of regulations Florida imposes on professional political committees.

For example, the all-volunteer Broward Coalition can continue to discuss ballot issues of concern to the community in its newsletter and on its website.  The UF College Libertarians can continue to advertise campus events with local politicians and distribute fliers about ballot issues to university students.  And the National Taxpayers Union can continue to include information about Florida ballot measures when it updates its guide about national ballot measures.